Supreme Court of the ACT|2014-11-13|Before: Burns J

R v Harrington [2014] ACTSC 321 (13 November 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - Drug Offences - trafficking controlled drugs - possessing marketable quantities of unlawfully imported border controlled drugs - sentence - impact of terminal illness on sentence

R v Karan [2013] NSWCCA 53

Commonwealth Director of Public Prosecutions (Crown)

1. John Harrington, on 3 March this year you entered pleas of guilty to two charges on an indictment dated 31 May 2012. The first charge (CC2011/6780) alleges that on 6 July 2011, contrary to s 307.6 of the Criminal Code Act 1995 (Cth) (the Criminal Code), you attempted to possess a substance, the substance being a border controlled drug that was unlawfully imported, namely cocaine, and the quantity attempted to be possessed being a marketable quantity (the first offence). The maximum penalty prescribed for this offence is 25 years' imprisonment and/or a fine of $550,000.00.

2. The second charge (CC2011/6896) alleges that on 7 July 2011, contrary to s 302.4 of the Criminal Code, you trafficked in a substance, the substance being a controlled drug namely cocaine (the second offence). The maximum penalty of this offence is 10 years' imprisonment and/or a fine of $220,000.00.

3. An Agreed Statement of Facts was tendered at the sentence hearing. I will refer to the summary of those facts set out in the Crown's submissions on sentence which I am satisfied accurately summarises the Agreed Statement of Facts.

4. On 30 June 2011 a FedEx parcel addressed to Capital Stainless Steel, 6 McEwan Avenue, Oaks Estate, ACT, Australia, 2620 arrived in Sydney. The consignee named on the airway bill was David Horner, O'Reilly's Auto Parts, Chicago, USA. The contents of the parcel were described as "one box of six bottles of Barrier Reef Carnauba auto wax".

5. The parcel was intercepted by members of the Australian Customs and Border Protection and opened by the Australian Federal Police on 1 July 2011. The parcel contained six bottles of what appeared to be Barrier Reef car wax. The contents of one of the six bottles of car wax, being a white liquid paste, was tested and found to contain cocaine. The other five bottles contained a light blue liquid. The AFP removed the white paste that tested positive for cocaine and substituted an inert white paste into the bottle for the purposes of a controlled delivery.

6. On 4 July 2011 at about 1 pm a member of the Australian Federal Police posing as a FedEx employee delivered the parcel to Jeffery Williams at Capital Stainless Steel in Oaks Estate. At 1.46 pm Jeffery Williams rang you to advise that "those brackets" were ready. You were under physical surveillance and you drove to Oaks Estate and collected the package from Capital Stainless Steel.

7. On the evening of 6 July 2011 you and another man drove to and entered the building at 70 Barrier Street, Fyshwick, which are commercial premises. You then opened the one bottle of Barrier Reef car wax that had been in the FedEx parcel that contained white paste and emptied the contents into a baking dish. You had previously discarded the other bottles. You were then arrested by members of the Australian Federal Police and a search warrant was executed at those premises. At the time police entered the room the ceramic baking dish was found in the corner of the room overturned with white paste in it. White paste was also found on your clothing.

8. A number of items seized from 70 Barrier Street were subsequently tested and found to contain traces of cocaine. These included two pieces of plastic sheeting located on the wooden bench in the middle of the room; two blue sponges also located on the wooden bench; a set of electronic scales also located on the wooden bench; two metal spoons also located on the wooden bench; a knife and a plastic zip lock bag containing white powder found on you; and the ceramic baking dish that had the white paste in it which was found in the corner of the room. In addition, a food dehydrator in its original box, located in a corner of the room, was subsequently found to have your fingerprints on it and in addition a DNA profile that provided extremely strong support that the DNA located on it was yours.

9. Later forensic testing of the white substance which had originally been in the bottle of Barrier Reef Carnauba wax before it was replaced with the white paste revealed that the net weight of the substance was 539.8 grams and that it was 47.9% cocaine. The amount of pure cocaine was therefore 258.5 grams. The Criminal Code provides that the range of the marketable quantity for cocaine as a border controlled drug is 2.0 grams up to 2 kilograms. The amount of cocaine that you attempted to possess was therefore some 129 times the threshold amount for the marketable quantity.

10. The relevant principles that apply to sentencing for drug importation offences, including attempting to possess an unlawfully imported border controlled drug, are set out in the New South Wales Court of Criminal Appeal decision in R v Karan [2013] NSWCCA 53 and include:

(a) the criminality of an offender must be assessed by reference to the involvement of the offender in the steps taken to effect the importation;

(b) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing drugs;

(c) it is often difficult for a sentencing court to attempt to categorise the offender's role in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court;

(d) the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;

(e) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is relevant and has increased significance when the offender is aware of the amount of drugs imported;

(f) it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;

(g) the difficulty of detecting importation offences, and the greater social consequences that follow, suggest that general deterrence is to be given chief weight on sentence to signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;

(h) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;

(i) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.

11. The facts concerning your involvement in this offence are that on 21 May 2011, about six weeks before the parcel containing the cocaine arrived in Australia, you left Australia for Chicago, Illinois, carrying $20,000.00 in cash which you declared. On 22 May 2011 a work colleague, Marcus Fox, left Australia to also travel to Chicago carrying $22,000.00 in cash at your request. That amount was also declared. I am satisfied that this money was used to purchase the cocaine that was imported into Australia in the bottle of Barrier Reef Carnauba wax.

12. You gave evidence at the sentence hearing that you were not the source of all of this money which was used to purchase the cocaine. You said that you only provided $10,000.00 for which you were to receive 15 percent of the cocaine. That appears to me to be very unlikely as you were the person intimately involved in taking the money out of Australia and by inference, arranging for the shipment, being responsible for collecting the shipment and then preparing the cocaine into a useable form. You were the person taking all the risk and I reject the proposition that you were so intimately involved simply for a return of 15 percent of the cocaine.

13. You gave evidence that your role at the premises of 70 Barrier Street was simply to divide up the cocaine. You denied that you were going to use the food dehydrator found at those premises to prepare the cocaine. I do not accept those propositions. The white paste which you believed contained cocaine had been placed in a baking dish, you provided no explanation for that action if all that was to occur was that you were to divide up the substance. Your fingerprints and DNA were also found on the dehydrator. In addition, no scales were found at that address which would have allowed you to divide up the substance in the way you suggest. Your response in cross-examination, when confronted with the proposition that you had no way of measuring up the cocaine, was to assert that you were trusting. This is simply not credible. On all of the evidence I am satisfied that you provided the bulk, if not all of the money, to purchase the cocaine which was later imported into Australia. In addition, you collected the bottle which you believed contained cocaine from Jeffery Williams on 4 July 2011, after being advised that it had arrived.

14. On the evening of 6 July 2011 you were found with the bottle that had formerly contained cocaine in the premises in Fyshwick and the substance which you believed contained cocaine had been emptied into a baking dish. I should also note that you were found to be in possession of the keys to the premises at 70 Barrier Street. I am satisfied that you were taking steps to start the process of extracting the cocaine from the white paste. You clearly had a very significant role in this importation.

15. You gave evidence that you were personally addicted to cocaine and you also frequently gave that drug away to others at parties. You denied ever selling cocaine. It is implicit in your evidence that you deny that this importation was for the purpose of selling the cocaine to make a profit. I accept that there is clear evidence of personal use of cocaine emerging from the search of your apartment, to which I will refer in a moment, so I accept that you were a user of cocaine. I do not, however, accept the proposition that you had no intention of selling any of the cocaine so as to make a profit.

16. You gave evidence that you usually purchased 1 ounce or approximately 28.3 grams of cocaine for $6,000.00. This places the value of the 539.8 grams of white liquid paste containing cocaine at $114,000.00. I recognise that this was not pure cocaine but there was nothing to suggest that you proposed extracting the pure cocaine from the white paste before it was to be used or even that you had the knowledge or ability to do so.

17. You suggested that you had financed the purchase of this cocaine through a restaurant business that you owned which you described as quite successful. The implication of that evidence was that you did not need to make a profit by the sale of the cocaine or any part of it. In my opinion, little weight can be given to that assertion.

18. It must have been obvious to you in the context of your assertion that you did not need to sell any part of the cocaine that the question of your financial position would be very significant. Not only was this not addressed in your evidence-in-chief but you ultimately produced no records, either personal or business, to support the proposition that you were in such a financial position that you did not need to sell any of the cocaine. I accept that you probably would have used some of the cocaine yourself but I am also satisfied that you sought to make a profit by the sale of a proportion of the imported cocaine.

19. In regard to the Second Offence of trafficking in a controlled drug, in the early hours of 7 July 2011 the Australian Federal Police executed search warrants at your home in Griffith and on your car which was parked within the unit complex where you were living. A number of zip lock bags containing white powder were located in various places in the unit together with a line of white powder on the kitchen bench. The total amount of white powder found in the unit when analysed was found to contain 24.91 grams of pure cocaine. Also found in your unit and in your car were paraphernalia commonly used in the sale of drugs including three sets of electronic scales, numerous zip lock bags and a drug test kit.

20. I take into account in sentencing you the fact that you do not have a significant criminal history, although the authorities dealing with sentencing for this type of offence all suggest that that is to be given less weight in this type of offending.

21. I take into account your pleas of guilty to these charges, although they were very late pleas. You originally entered pleas of not guilty to these charges and they were listed for a three week trial to commence on 27 May 2013. Subsequently that trial date and a number of subsequent trial dates were vacated until the matters were finally listed for a three week trial commencing on 3 March this year. You entered pleas of guilty on 3 March after all necessary preparations and arrangements for the trial had been completed.

22. Your assertion that you pleaded not guilty on the advice of your counsel is really beside the point. You could, at any time, have instructed your counsel to plead guilty or you could have changed your legal representation. I am satisfied that you hoped that your legal representatives could defeat the charges and have you acquitted. As such, your pleas of guilty do not demonstrate significant remorse although I accept that they have a utilitarian value, albeit limited because of the late timing of the pleas.

23. I take into account the contents of the Pre-Sentence Report. You are 62 years of age and reported having two previous significant relationships which produced one daughter and three sons. You apparently have regular contact and friendships with your previous partners, as well as supportive relationships with your adult children. You reported being in a stable relationship since 2010 although issues have arisen because of the present charges.

24. You have a significant history of self-employment as a proprietor of a number of restaurants and clubs in Canberra. Your current business closed in March this year. You told the author of the Report that you had been in receipt of Centrelink payments since December 2013.

25. You reported commencing the use of cocaine in 1998, reporting infrequent use until 2011 when your use escalated to daily. You claimed that you would spend between $600.00 and $1,200.00 a day on cocaine. I note that you told the author of the Report that your motivation for engaging in this offence was to free yourself of considerable financial debt.

26. You expressed remorse for your offending, as you did in your evidence before me which I accept. Your risk of re-offending is assessed at low and I agree with that assessment.

27. I take into account the personal testimonials that were provided at the sentence hearing. They speak of you as a person of good character and as being a reputable and reliable person in the performance of your duties as a restaurateur.

28. I take into account the fact that you have been diagnosed with cancer for which you have been treated. The prognosis with respect to that condition is guarded. I am told that you have somewhere between a 40 percent and 60 percent chance of surviving for five years. These figures, of course, imply that your condition may worsen and you may survive for less than five years. Conversely, you may survive for longer than five years. I have no reason to doubt that you will receive appropriate treatment in custody for any medical condition and there is no reason to believe that imprisonment will be any greater burden on you because of your illness than if you were not so afflicted or that imprisonment will have an adverse effect upon your health.

29. Whilst I will take into account the fact that you have an illness which is likely to affect your longevity, in the present case I do not accept that this calls for a significant reduction in the appropriate sentence. If your condition worsens during the period of any sentence of imprisonment this may be addressed by an application for release on licence.

30. The dominant sentencing consideration for offences involving the importation of drugs is deterrence. This court must pass a sentence which is designed to deter those who may engage in this type of conduct. In my opinion nothing less than an immediate term of imprisonment will be sufficient to adequately punish you for your crimes and also to deter others who may be minded to commit similar offences.

31. I will reduce the terms of imprisonment that would otherwise be appropriate by 10 percent to reflect your pleas of guilty. I take into account, both in setting the appropriate sentences and the non-parole period, that this is your first period of imprisonment. I also take into account the fact that you have good prospects of rehabilitation.

32. On the charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, I record a conviction and you are sentenced to four years and six months' imprisonment commencing on 13 February 2014 and expiring on 12 August 2018.

33. On the charge of trafficking in a controlled drug, namely cocaine, I record a conviction and you are sentenced to ten months' imprisonment concurrent with the sentence imposed on the previous charge.

34. I set a single non-parole period of two years and three months' imprisonment commencing on 13 February this year and expiring on 12 May 2016.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Criminal Code Act 1995(Cth)

R v Harrington [2014] ACTSC 321

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R v Harrington [2014] ACTSC 321 (13 November 2014)

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